Constitutionality of 18 U.S.C. § 3184
In LoBue v. Christopher 839 F. Supp. 65 (D.D.C. 1995) two
plaintiffs filed a civil action in the District of Columbia seeking an
against their surrender and a declaratory judgment that 18 U.S.C.
unconstitutional. The purported constitutional flaw lay in the ability of
Secretary of State to decline to surrender a fugitive whom the extradition
had certified extraditable. The assignment of discretion to the Secretary
State, they argued, intruded on separation of powers and violated the
Appointments Clause of the Constitution.|
The district court agreed. It declared the statute
and certified as a class all fugitives facing extradition and enjoined the
surrender - though not any extradition proceedings - of any class member.
On the government's emergency application, the court of appeals
the class-wide injunction. Thereafter, it vacated the district court's
declaratory judgment on jurisdictional grounds. The court of appeals held
a fugitive facing extradition in another district (in this case the N.D. of
could challenge the lawfulness of this extradition by way of a habeas
in that district and not in a separate lawsuit against the Secretary of
the District of Columbia. See LoBue v. Christopher, 82 F.3d
(D.C. Cir. 1996). While the constitutional issue is still being argued by
persons facing extradition, no decision adopts the rationale urged by the
plaintiffs in that case. To the contrary, every extradition and habeas
since LoBue has rejected the argument. See, e.g.,
Extradition of Abu Marzook, 924 F. Supp. 565, (S.D.N.Y. 1996); Sutton
Kimbrough, 905 F. Supp. 631 (E.D.MO. 1995); Matter of Extradition of
Lang, 905 F. Supp. 1385 (C.D. Cal. 1995).
As those courts have variously noted, the extradition scheme is
functionally equivalent to all other preliminary criminal proceedings. The
extradition judge's certification that an extradition is supported by
cause and is otherwise lawful is no different than a judge's issuance of a
or arrest warrant or a finding of probable cause at a preliminary hearing.
all these instances a judge makes a finding on legality and the Executive
thereafter exercises its discretion to determine whether to proceed to
arrest, or prosecute. Courts have also noted that this executive discretion
only be exercised to a fugitive's benefit if the extraditing judge declines
certify extraditability. The government cannot proceed on that request.
The issue is not finally resolved, so it is possible that another
in some future case may adopt the rationale of the district court in
LoBue. However, the arguments in opposition to LoBue are
compelling and have thus far persuaded every judge since LoBue to
the LoBue analysis. If a LoBue motion is made in your
case, please inform the Office of International Affairs immediately.
[cited in USAM 9-15.100]